The Yale Law Journal

May 2024

The Past and Future of Universal Vacatur

Federal CourtsAdministrative Law

abstract. Universal vacatur, the judicial power to void a regulation, is a remedy rooted in the foundations of modern administrative law, not an artifact of judicial overreach or creative reinterpretation of the Administrative Procedure Act (APA). This Feature adds to the literature on the historical underpinnings and legal propriety of universal vacatur by mapping the development of universal vacatur from the pre-APA period through the Abbott Labs trilogy. Canvassing the work of courts, Congress, and scholars, this account underscores that universal vacatur is a legitimate part of the remedial scheme of administrative law, grounded in history and sustained by subsequent recognition.

After establishing these points, the Feature connects the debate over universal vacatur to another topic of vigorous discussion in contemporary administrative law: the Roberts Court’s recent fortification of the major questions doctrine. The case against universal vacatur leverages the intuition that an individual district court judge should not be able to decide issues of vast economic and political significance by vacating a rule universally absent a clear statement in the APA that the judge possesses that authority. That form of argument resembles the mechanics of the new major questions doctrine. As to their consequences, the two also align: both serve to centralize power in the Supreme Court by weakening actors of our government other than the Supreme Court. Though accepting the case against universal vacatur will certainly place curbs on lower court judges, it would also indulge, and thereby strengthen, the perilous proposition that the Supreme Court should intervene to redistribute congressional allocations of power in ways that centralize its own importance and preferences.

author.Herzog Research Professor of Law and Associate Dean of Faculty, University of San Diego School of Law; Professor of Law, Stanford Law School (starting June 2024). For helpful comments and conversations, I am grateful to Kent Barnett, Jack M. Beermann, Emily Bremer, Kevin M. Clermont, Zachary D. Clopton, Justin Driver, Christopher M. Egleson, William N. Eskridge, Richard H. Fallon, Vicki C. Jackson, Christopher S. Havasy, Lee Kovarsky, Margaret H. Lemos, Ronald M. Levin, Joshua C. Macey, John F. Manning, David McGowan, Nicholas R. Parrillo, James E. Pfander, Daphna Renan, Judith Resnik, Amanda L. Tyler, Christopher J. Walker, Jed Stiglitz, Ernest A. Young, and Adam S. Zimmerman. This draft benefitted from feedback received at the Boston University School of Law faculty workshop, the Duke Law School Public Law Colloquium, the Harvard Law School Public Law Workshop, the Power in the Administrative State workshop, and the Yale Law School faculty workshop. I am indebted to the editors of the Yale Law Journal for their thoughtful comments and suggestions and to the dedicated staff of research librarians at USD School of Law for their tireless efforts in tracking down sources.

Surely something has to be done; and who else to do it but this Court?

—Justice Kagan1


A great deal of public law has a single question at its crux: what is the appropriate scope of federal judicial power in our system of government? Much of administrative law is an organically developed answer to this question;2 the area of study we call “federal courts” was consciously invented to address it.3 Explicitly or implicitly, that question is raised in every lawsuit that asks a federal court to opine on the legality of a federal regulation and—if it is illegal—to enjoin or vacate that regulation in an order with universal effect.4

Judges and scholars continue to debate vigorously the propriety of universal remedies,5 and at least two cases decided by the Supreme Court in the October 2022 Term fairly presented an opportunity to rule on their validity. At oral argument for United States v. Texas,6 a complicated immigration-law case, the Solicitor General contended that the Administrative Procedure Act (APA) does not authorize a federal court to vacate a rule universally.7 Several of the Justices reacted to this argument with palpable surprise. Chief Justice Roberts exclaimed, “Wow.”8 As he pointed out, universal vacatur was “what the D.C. Circuit and other courts of appeals have been doing all the time as a staple of their decision output,”9 and was a remedy that the Court had upheld “over and over and over again.”10 In response to the Solicitor General’s contention that D.C. Circuit judges have “reflexively assumed” the power to vacate rules universally without attending to the APA’s text, structure, and history,11 Justice Kavanaugh stoutly disagreed and added, “no case has ever said what you’re saying anywhere.”12 Justice Jackson pointed out the “conceptual problem” with the government’s argument that a null agency action could continue to be applied to nonplaintiffs.13 And Justice Alito made a plea for additional scholarly work in this area, noting that the “innovative law review article” relied on by the government appeared only recently: “are we left to do all of the scholarship that would be required to figure out whether this new interpretation is the correct interpretation?”14 The topic of universal vacatur arose again at an oral argument in February 2023—this time, in a challenge to the Biden Administration’s student-loan-forgiveness program.15 Intriguingly, on that occasion, the Justices’ questions spoke not only to positive law but also to how the government has and would respond to nonuniversal, party-specific orders issued by various levels of courts.16

Ultimately, the Court did not address the propriety of universal relief in either case.17 But in a concurring opinion in United States v. Texas,18 at least three Justices indicated that they were receptive to the government’s reading of the APA—a reading that has justly been described as “[d]eeply revisionist.”19 In that concurrence, Justice Gorsuch questioned “the essential premise on which the district court proceeded—that the APA empowers courts to vacate agency action.”20 Expanding upon arguments made both by the government and by Professor John Harrison,21 Gorsuch doubted whether Congress, by enacting the APA, meant to “vest courts with a ‘new and far-reaching’ remedial power”22 to vacate rules. He acknowledged, however, that the question was a complex one requiring further reflection.23 He concluded his discussion of this issue by noting, “[T]he questions here are serious ones. And given the volume of litigation under the APA, this Court will have to address them sooner or later.”24

On that last point, at least, Justice Gorsuch was clearly correct: “sooner or later,” the Court will have to address the propriety of universal vacatur. And for all the ink already spilled on universal remedies,25 much remains to be written. As Gorsuch’s opinion epitomizes, the legal and historical contentions against the propriety of universal vacatur have recently evolved in ways that demand fresh interrogation and response.

This Feature takes up that challenge by responding to the newest iterations of the case against universal vacatur. It also situates that latest contest within broader ongoing debates concerning statutory interpretation in administrative law and the Supreme Court’s role in our system of government. Justice Gorsuch’s concurring opinion has now squarely placed on the table the claim that the APA—not only as originally enacted but also as understood for two decades thereafter—did not contemplate a regime of judicial review in which courts could vacate rules universally. The implication of that claim would be that the practice of universal vacatur is nothing but the product of judicial freelancing by lower courts.

This view, which treats universal vacatur as the fruit of judicial fiat, disregards a lot of history and a lot of law. The APA authorizes the universal vacatur of rules. The APA allows litigants to bring a civil action that seeks, inter alia, a judgment that a rule be “h[e]ld unlawful and set aside.”26 Universal vacatur—”a judicial order declaring that the rule shall no longer have legal effect”27—is simply an order decreeing that an unlawful rule is invalid in toto. Lower courts issued universal vacaturs before the APA’s enactment;28 they continued to issue universal vacaturs in the decade following the APA under the framework for review set out in the APA and related statutes;29 and they continue that practice today.30

Many skeptics of universal vacatur are today consumed with the question of who may benefit from a lower court judgment that a rule is invalid. But at the time of the enactment of the APA and indeed for many years thereafter, the consuming question was not who but when. The pivotal issue was the “reviewability” of the agency action, not who the potential beneficiaries would be if the court ultimately reviewed the agency action and held it to be unlawful. In cases implicating special statutory review provisions,31 Congress had itself marked specified agency actions as “reviewable.”32 However, in deciding challenges to agency actions that Congress had not specifically made reviewable by statute, courts were navigating more ambiguous territory.33 Crucially, though, if a regulation was deemed reviewable, the court then possessed the authority to determine the validity of the regulation in exactly the same way as it would have determined the validity of an agency action made reviewable via a special statutory review proceeding. Once the regulation was deemed reviewable, the court had the power to pronounce on the rule’s validity and to nullify it if invalid.

This overriding concern with reviewability explains why it is a red herring to focus, as some have urged,34 on the absence of an express mention of the term “vacatur” in the portions of post-APA treatises and legal materials dealing with remedies. Scholars such as Kenneth Culp Davis and Louis Jaffe dealt with cases that resulted in the universal vacatur of regulations in their discussions of ripeness or reviewability, not in their discussions of remedies.35 The absence of the term “vacatur” from their writings—and indeed, that word’s absence from the APA itself—is merely because suits seeking review through special statutory provisions, declaratory judgments, and injunctions—which these scholars did discuss—were the vehicles through which courts invalidated regulations entirely. The fact that the shorthand term for such relief subsequently came to be “vacatur”36—and much more recently “universal vacatur”37—is neither here nor there.

The Abbott Labs trilogy,38 far from casting doubt on the foregoing account,39 instead encapsulates and confirms it. The parties’ focus in the Abbott Labs trilogy was chiefly on reviewability—the “when” question—not on to whom the remedy would extend if the government lost.40 Critically, though, the consequences of holding the regulations reviewable were apparent in the record: the Delaware district court had issued a universal injunction and a universal vacatur of the regulations, and the litigants in the Southern District of New York sought similar relief.41 The government’s merits brief expressly argued that allowing pre-enforcement review in district courts would subvert Congress’s plan by enabling individual district court judges to halt a regulation’s enforcement throughout the country.42 This was all in plain view as the Court decided the Abbott Labs trilogy—in decisions that rejected the government’s arguments in two of the trilogy’s three cases.43

The power to vacate a rule is, in short, firmly rooted in the APA, as courts and litigants have long understood. Now, however, the Court is being urged to read the APA to omit that power. As Justice Alito noted, endorsing that argument would cause “a sea change in administrative law as currently practiced in the lower courts.”44 Yet this possibility is no longer “off the wall.” And while this argument has drawn its most visible momentum from the determined advocacy of the Department of Justice (DOJ) under both President Trump and President Biden, it is an argument that may gather steam on a more subterranean level from the way in which it plays on themes evident elsewhere in the Roberts Court’s jurisprudence.

Most resonant in this context is the Roberts Court’s new approach to cases in which agencies have relied on existing statutory authority to exert significant, and to many eyes startling, regulatory power. The major questions doctrine, which has very recently taken on a newly muscular incarnation, requires that Congress speak clearly to authorize agencies to address subjects of vast economic and political significance.45 On three occasions in the last two years—in cases involving the Centers for Disease Control and Prevention’s eviction moratorium, the Occupational Safety and Health Administration’s (OSHA) vaccine mandate, and the Environmental Protection Agency’s Clean Power Plan—the Court has deployed the major questions doctrine to curtail the executive branch’s efforts to regulate in consequential ways.46

What does the new major questions doctrine have to do with the debate over universal vacatur? One resonance appears in their mechanics. Several skeptics of universal vacatur point to the absence of a pellucid statement in the APA that a court has the power to “vacate” a rule and infer from that absence that the APA should not be read to confer that power on the reviewing court.47 The insistence on a precise form of words to authorize a significant form of power is the major questions doctrine’s signature move,48 and it is poised to become the engine powering the case against universal vacatur. Indeed, as if on cue, a veteran DOJ litigator recently penned a paper expressly urging the Court to use “major questions doctrine jujitsu” to “rein in district court judges” by holding that Section 706 does not authorize universal vacatur of rules.49

As to consequences, the relationship is subtler, but well worth exploring. At first blush, the two appear to cut in opposite directions: the new major questions doctrine expands the power of the federal courts vis-à-vis the executive branch and Congress, while accepting the case against universal vacatur would seem to have the effect of reducing the power of federal courts vis-à-vis the executive branch. The key point to understand, though, is that accepting the case against universal vacatur would have a sharply disparate impact on different levels of courts. It would significantly curtail the remedial powers of the inferior federal courts,50 but create only technical limitations upon the powers of the Supreme Court, which will retain the authority to cause a rule to be “as good as” universally vacated because of the vertical effect of its holding.51

For that reason, the case against universal vacatur and the major questions doctrine align: they both serve to weaken actors in our government other than the Supreme Court. Through the major questions doctrine, the Court has funneled statutory interpretive power to the federal courts and away from the executive branch—all while keeping its own powers (at least) intact. If the Court were to jettison universal vacatur, it would curtail the power of lower courts to give remedies that Congress has sanctioned and accepted for decades—but the Court’s own effective power to invalidate rules universally would remain untouched. Thus, the case against universal vacatur has subtler consequences for the distribution of power across actors in our government than it may seem at first glance. While accepting the case against universal vacatur will undoubtedly curb the capacity of lower court judges to check agencies, it would also indulge—and thereby reinforce—the perilous proposition that the Supreme Court should intervene in reshaping congressional allocations of power in ways that centralize its own importance and preferences.

This Feature proceeds in three parts. Part I sets the table by pointing out recent statements—and silences—by various Justices concerning universal remedies in suits against the federal government and by explaining some of the reverberations of these varied signals on lower court judges. Part II addresses the concerns mooted by Justice Gorsuch and others regarding universal vacatur, beginning with materials from before the APA and ending with a discussion of the Abbott Labs trilogy. Part III shifts to a broader plane to explore the institutional distribution-of-power consequences of deleting universal vacatur from the APA. This Part explains why—when it comes to the Supreme Court’s power—the case against universal vacatur and the major questions doctrine should be understood as two sides of the same coin. A brief conclusion follows.